Two more states with intermediate appellate courts. You may wonder why I think that’s important, while KF thinks whether the judges are elected or appointed is important. We’re working on it.
In Oregon, tribal interests win at a 40 percent rate.
In Colorado, tribal interests win at a 67 percent rate.
Here are the Oregon cases:
From the NY Times:
Justices Turning More Frequently to Dictionary, and Not Just for Big Words
By ADAM LIPTAK
WASHINGTON — In a decision last week in a patent case, Chief Justice John G. Roberts Jr. puzzled out the meaning of a federal law by consulting the usual legal materials — and five dictionaries.
One of the words he looked up was “of.” He learned that it means pretty much what you think it means.
In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like “prevent,” “delay” and “report.” Over the years, justices have looked up both perfectly ordinary words (“now,” “also,” “any,” “if”) and ones you might think they would know better than the next guy (“attorney,” “common law”).
All of this is, lexicographers say, sort of strange.
“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”
And in a very quick, just for fun (?) search:
Carcieri v. Salazar: “At that time, the primary definition of “now” was “[a]t the present time; at this moment; at the time of speaking.” Webster’s New International Dictionary 1671 (2d ed.1934); see also Black’s Law Dictionary 1262 (3d ed.1933) (defining “now” to mean “[a]t this time, or at the present moment” and noting that “ ‘[n]ow’ as used in a statute ordinarily refers to the date of its taking effect …” (emphasis added)).”
Nevada v. Hicks: “(“Process” is defined as “any means used by a court to acquire or exercise its jurisdiction over a person or over specific property,” Black’s Law Dictionary 1084 (5th ed.1979), and is equated in criminal cases with a warrant, id., at 1085.)”
U.S. v. Lara (J. Thomas, concurring): “The sovereign is, by definition, the entity “in which independent **1644 and supreme authority is vested.” Black’s Law Dictionary 1395 (6th ed.1990). It is quite arguably the essence of sovereignty not to exist merely at the whim of an external government.”
Minnesota v. Mille Lacs Band (C.J. Rehnquist, dissenting):”Usufructuary rights are “a real right of limited duration on the property of another.” See Black’s Law Dictionary 1544 (6th ed.1990).”
Feel free to add additional favorites in the comments.
And now we turn to another state with an intermediate appellate court, Kansas.
In Kansas, tribal interests have a 42 percent win rate.
Here are the cases:
Here is the article, from the Atlantic.
An excerpt or two:
The United States Supreme Court Monday once again stuck it to Native American litigants. In a 7-1 opinion (Justice Elena Kagan recused), the Court sided with the U.S. government and against theJicarilla Apache Nation in a fiduciary-duties case brought by the Nation to determine whether and to what extent federal officials mismanaged the tribe’s money. The decision was hardly sweeping– it involved a discovery dispute and the application of the attorney-client privilege– but it’s still worth a closer look.
The Nation sued the feds in 2002 asserting that the government breached its fiduciary duty to properly manage funds generated from the culling of timber, gravel and oil and gas resources from the Tribe’s land in Northeastern New Mexico. As all plaintiffs do, the Nation sought through discovery access to government documents that its lawyers thought might help establish that federal officials “failed to maximize returns on trust funds, invested too heavily in short-term maturities, and failed to pool its trust funds with other tribal trusts.”
For six years, the Tribe and the government futzed around in “alternative dispute resolution” trying to reach a settlement. During this time, the feds turned over thousands of relevant documents to Tribal attorneys but failed to produce 226 documents which government officials said were protected by the “attorney-client privilege, the work-product privilege, or the deliberative-process privilege.” The tribe went to court seeking to compel the production of those documents, arguing that its interests fell under a widely-acknowleged exception to the general rule that such documents may lawfully be protected from disclosure.
And in a biting critique:
Here’s the updated “report card” after today’s Jicarilla Apache decision.
The decision is here. It was authored by Justice Alito, and Justice Sotomayor is the lone dissent. Justices Ginsburg and Breyer filed a concurrence.
In this case, we consider whether the fiduciary exception applies to the general trust relationship between the United States and the Indian tribes. We hold that it does not. Although the Government’s responsibilities with re- spect to the management of funds belonging to Indian tribes bear some resemblance to those of a private trustee, this analogy cannot be taken too far. The trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law, and in fulfilling its statutory duties, the Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law. The reasons for the fiduci- ary exception—that the trustee has no independent interest in trust administration, and that the trustee is subject to a general common-law duty of disclosure—do not apply in this context.
And from the dissent:
Federal Indian policy, as established by a network of federal statutes, requires the United States to act strictly in a fiduciary capacity when managing Indian trust fund accounts. The interests of the Federal Government as trustee and the Jicarilla Apache Nation (Nation) as beneficiary are thus entirely aligned in the context of Indian trust fund management. Where, as here, the governing statutory scheme establishes a conventional fiduciary relationship, the Government’s duties include fiduciary obligations derived from common-law trust principles. Because the common-law rationales for the fiduciary exception fully support its application in this context, I would hold that the Government may not rely on the attorney-client privilege to withhold from the Nation communications between the Government and its attorneys relating to trust fund management.
We begin week 2 of our summer school project on Indian law outcomes in state supreme courts. Today is Arizona, which is the second state supreme court we study with an intermediate appellate court, meaning the court has more discretion in the cases it accepts. Our week 1 “scorecard” is here.
In Arizona, tribal interests win at about a 43 29 percent rate.
Here are the cases we looked at:
Here is the news from BLT.
In a relatively short period of time, his presence in the OSG had a big effect on tribal interests. His Indian law legacy in the SG’s office remains to be seen, given how so many cases remain pending, but hopefully he’ll be handling a few more Indian law cases in the future.
The next two Supreme Court conferences will be big ones in Indian Law. Here is a roster of cases that will be considered:
June 16, 2011
Miccosukee Tribe v. Kraus-Anderson
South Dakota et al. v. Yankton Sioux
June 23, 2011
We’ll do two today, since these states have fewer cases. Wyoming is another state with no intermediate appellate court. Utah will be our first with an intermediate appellate court.
First, in Wyoming, tribal interests have a 20 percent win rate.
Second, in Utah, tribal interests have a 43 percent win rate.
Here are the Wyoming cases:
Turtle Talk 
You must be logged in to post a comment.